Law Updates

By Aulich


How much power is too much power?

The NSW Government is celebrating their new law giving NSW Police the power to search convicted drug dealers without warrant. Deputy Premier Paul Toole says that “police will be in criminals’ faces more than ever”. Once you are a convicted drug trafficker police can enter your home at any time for the next 10 years without a warrant.

Maybe more criminal behaviour will be detected because of the new law. The politicians therefore voted it in. They also needed a quick win with the public in light of the number of gangland shootings that have happened in NSW in the last year or two.

But, did the politicians ever consider that the law comes at a significant cost? The cost of our civil liberties and the cost of the rule of law (meaning that every person is innocent until proven guilty) and the premise of our entire system of law. The pillars of our system are the rule of law and the separation of powers. That is, there is a separation between the Parliament (the law makers) the Executive (the Queen, Prime Minister and ministers – that put the law into action) and the Judiciary (courts – who interpret the law and make judgments on it). The whole reason we have a separate judicial system and judicial oversight into the law making and enforcing part of the system is to make sure no one has all the power. History has shown that there are only bad outcomes for citizens when all the power rests in the one place.

Significantly, the law will inevitably come at the cost of NSW Police abusing their power. If you think Police (NSW or otherwise) don’t abuse their power – come to court. Read the press. Before this new law, police needed independent oversight from a judicial officer to obtain a warrant to enter someone’s home. That process was not particularly difficult for police. Search warrants are granted every single day on the basis of the police outlining their suspicion on “reasonable” grounds that it is necessary.

The process was not broken.

Even when the police have to make formal application for a warrant they abuse their power. That is – they make improper and unsubstantiated claims to obtain a warrant, even when they know a judicial officer will review it. I despair as to what will now happen when there is absolutely no oversight for the police to obtain incredibly broad powers including entering the sanctity of someone’s home, anytime they want.

Here’s an example:

  1. A young woman meets a boy at a music festival, at 18. There was another girl who has her eyes on the same boy and is very put out and hurt (the other woman). Our young woman has on her 3 grams of cocaine or more than 3 grams of MDMA (ecstasy). Not many tablets to get over 3 grams. She is charged. Being in possession of 3 grams of cocaine or MDMA or more means, there is a presumption of drug trafficking that needs to be rebutted by her. Let’s say she can’t rebut that presumption – she then becomes a convicted drug trafficker by the definition of the law.
  2. Or, she gives her friend a little bit to have (not sells it to her) – just one pill – she is also a drug trafficker by definition of the law.
  3. Or, she once had a drug problem and sells a bit to keep funding her drug habit – she’s a drug trafficker.

Police can now come into her home and search it without warrant anytime they want for the next 10 years.

The same young woman finishes university, never takes or sees drugs again after her charges, marries the boy she meet at the festival, has two kids and a great job. She’s now 27 years old, at home – has just kissed the kids good night and ready for bed. Police knock on the door.

Well you say, “that wouldn’t happen. Police wouldn’t do that.” The other woman became a NSW Police Officer. Her “reasonable suspicion” could be she saw her once at a music festival dealing drugs. Or it could be “I just don’t like her, she stole my man”. No one will ever know because the police don’t have to justify it to anyone now.

Some of you will say that they will only use these powers to search associates of crime gangs. But everyone in our country is entitled to the same presumption of innocence. What if they’ve been to gaol and done their time? Will sentencing of drug dealers now take into account the fact that at any time for the next 10 years they could have raided by the police without a warrant? Surely that is an extra punishment?

Unsurprisingly, the NSW Law Society has voiced serious concerns with the new police powers and the erosion of civil liberties and our legal system. There will always be crime, there has been crime since the beginning of time. Does that justify eroding the very core of our society? The current gangland war is, at its core, about money and power. Where there is money and power, there is corruption and crime. So, that takes me back to the separation of powers. Is it ok, in an effort to stop crime, to erode our rule of law and separation of power to give unfettered power to the arm of the system that enforces the law? History has shown what happens when one part of the system has too much power – it has always resulted in corruption and crime. Does that not bring us right back to what we are trying to avoid?